>3d Congress) / 
2d Session }/ 

- zr^+- 


SENATE 


Document 
No. 505 


NECESSITY OF GREATER CARE 
IN MAKING LAWS 


ARTICLE 

ON THE 

GREATER CARE OF MAKING LAWS 


BY 

Hon. George Sutherland 

UNITED STATES SENATOR 
FROM UTAH 



t 


WASHINGTON 

GOVERNMENT PRINTING OFFICE 
1914 

- —- 












\ 



Submitted by Mr. La Follette. 


In the Senate of the United States, 

June 15, 1914. 

Ordered, That an article which appeared in the Independent Maga¬ 
zine of March 25, 1909, on the “Necessity of greater care in making 
laws,” by Hon. George Sutherland, United States Senator from Utah, 
be printed as a Senate document. 

Attest: 

James M. Baker, Secretary. 


D. OF D, 
Jb'i'! 27 1914 



NECESSITY OF GREATER CARE IN MAKING LAWS. 

[From the Independent of March 25 , 1909.] 






For the past two years a joint committee of the two Houses of 
Congress has been engaged in the work of revising the laws of the 
United States, a labor which may be not inaptly characterized as a 
species of legislative housecleaning, and which entails a systematic 
review of a vast legislative accumulation. The process brings to 
light many things that are out of date, as well as some that never have 
been in date at all. The Congress of the United States is perhaps 
the greatest legislative body in the world; nevertheless a vast deal 
of its work is found, in the restrospect, to be of an exceedingly hap¬ 
hazard character. Laws not only of doubtful validity, but occasion¬ 
ally laws which are clearly opposed to the plainest constitutional 
principles, have found their way into the body of the statute law; as, 
for example, the provision in the Revised Statutes to the effect that 
the judgment against the principal offender shall be conclusive evi¬ 
dence against the person prosecuted as receiver of stolen goods that 
the property therein described has been stolen, embezzled, or pur¬ 
loined. How such a provision, manifestly opposed to the guaranty 
of the Constitution that the accused shall enjoy the right “ to be con¬ 
fronted with the witnesses against him,” could have passed the scrutiny 
of the law committees of both Houses, as well as that of the member¬ 
ship of both Houses, is beyond understanding. 

There are laws—not unconstitutional—but substantially bad, as 
that which makes it a criminal offense for any person who, having 
presented a bid for the transportation of the mails and having been 
awarded the contract, shall wrongfully refuse or fail to enter into such 
contract; or having entered into the contract, shall wrongfully refuse 
or fail to perform such service, and provides punishment by fine and 
imprisonment. To refuse wrongfully to enter into a contract or 
violate the provisions of a contract already made, even with the Gov¬ 
ernment, is essentially a civil and not a criminal wrong. Congress not 
only ignored this distinction, but, apparently fearing that the use 
of the qualifying adverb “wrongfully” might enable some unfortunate 
delinquent to escape a term in the penitentiary, thoughtfully added 
the further proviso that the failure or refusal to enter into or carry 
out the provisions of such contract shall be prima facie evidence in all 
prosecutions that such failure or refusal was wrongful. 

Another statutory provision which is not unconstitutional—nor, 
perhaps, substantially bad—but simple inane, is the provision in the 
Articles of War solemnly declaring “All members of the court-mar¬ 
tial are to behave with decency and calmness.” Just what dire con¬ 
sequence may be expected to follow the failure of some impulsive 
member of the court-martial to maintain his poise of manner or ob¬ 
serve the military canons of good behavior is left entirely to the 

3 




^IJSTG LAWS. 

4 NECESSITY OF GREATER CARE IN MAu 

imagination, as the lawmakers generously refrained fi .enk^^ an ^ 
penalty whatsoever to a violation of this unique enacting unconst' 

In enacting some of the laws which have been decla, i> e censilr „ 
tutional by the Supreme Court Congress can not justly v. ' ^ed, 
becaus 3 they were of a character calculated to accomplish great pub¬ 
lic good, and, while their constitutionality was not entirely free from 
doubt, the reasons in favor of their validity seemed to preponderate, 
and the Supreme Court itself has declared their invalidity by the 
narrow margin of a 5 to 4 vote. 

On the other hand, Congress has passed some invalid laws, and the 
reasons against their validity have so clearly preponderated that it is 
difficult to find any excuse whatever for their enactment. It is not 
unfair to say that sometimes such laws have been passed in response 
to an apparently overwhelming public sentiment, and Members of 
both Houses have attempted to justify their votes by the comforta¬ 
ble plea that the courts, after all, were the ultimate interpreters of the 
Constitution, and that the burden of deciding whether the popuaT 
demand was contrary to the supreme law of the land might properly 
be thrown upon judicial shoulders. When it is considered that every 
Member of Congress, equally with every member of the judiciary, is 
sworn to uphold and defend the Constitution, such a plea is, to say 
the least, more specious than sound. 

Laws that are simply bad in form, as might naturally be expected, 
are much more frequent. Two or three selected at random will 
illustrate. In one of the appropriation acts it is provided that no 
contestee or contestant for a seat in the House of Representatives 
shall be paid exceeding $2,000 for expenses in election contests, 
while the Revised Statutes provide emphatically that no payment 
whatsoever shall be made to either party in such cases. The general 
law, therefore, affirmatively forbids any payment; the special pro¬ 
vision, by implication at least, permits the payment of as much as 
$2,000; yet there is no repeal of the former by the latter unless by 
implication merely. 

Section 3598 of the Revised Statutes regulates the use of rooms 
“assigned by law” to be occupied by certain officers, when what Con¬ 
gress meant to say was rooms “lawfully assigned.” The rooms are, 
of course, not assigned by law, but by an official under the law. 
Similar illustrations of the inexact use of words and phrases might be 
multiplied almost indefinitely. 

The act of March 3, 1887, to determine the jurisdiction of the circuit 
courts, etc., as enrolled and printed, contained so many errors that 
Congress reenacted the law-for the sole purpose of correcting these 
errors, but in the latter act the arrangement of the clauses describing 
the various cases in which the Federal courts shall have original 
jurisdiction is so involved that it became a controverted question as 
to whether the jurisdictional limit of $2,000 qualified all the cases 
provided for or only a portion of them. The Supreme Court, in de¬ 
ciding the question, was obliged to virtually recast the language. 

In the same act, with the purpose of repealing the latter portion 
of section 5 of the act of 1875, Congress, instead of setting forth the 
precise language, in terms repealed “ the last paragraph of section 5.” 
Section 5, however, is not divided into paragraphs, but consists of 
a single sentence separated by commas and semicolons. 


5 


NECESSITY OF GREATER CARE IN MAKING LAWS. 

Much unnecessary confusion has resulted from the loose way in 
which amendments are sometimes made to existing laws. One 
method frequently resorted to when an existing act of Congress, or a 
section thereof, is sought to be amended by striking out or inserting 
certain words is to provide that “Section —, etc., is hereby amended 

by striking out (or inserting) the words--— in line —, etc.” The 

consequence of such a method is always that those who consult the 
law must go carefully over the old statute and insert at the proper 
places the amendments which have from time to time been made in 
this manner, entailing the altogether needless burden of fitting to¬ 
gether the detached portions ol the law; and when, as not infrequently 
happens, the reference to the point where the amendment is to occur 
is incorrect, or the language is inexact, the result is a jumble, always 
confusing and sometimes meaningless. Such a process of amendment 
can result only in disorder^ patchwork, not to be justified upon any 
view of the matter. For the sake of clearness, as well as of conven¬ 
ience, amendments to existing laws should never be made by reference 
only, but the act or section should be reenacted at length, and the old 
law specifically repealed. This practice is now enjoined upon State 
legislatures by constitutional provision in many of the States of the 
Union. If, in addition to this, wherever it is practical, the amenda¬ 
tory statute should contain a preliminary recital of the words pro¬ 
posed to be stricken out or inserted, as, for example, u Section — is 
amended by striking out (or inserting) the following words in line —, 
etc., so as to read,” etc., one consulting the statutes would then be 
able to see at a glance precisely what change had been made in the old 
law, without the necessity of comparison. This form of amendment, 
it is true, has been criticized as being clumsy; nevertheless, I think 
the additional clearness and convenience which would result from its 
use would far outweigh any objection of this character. 

There are also many enactments which are found to be inconsistent 
with each other. One passed in March, 1875, requires that copies 
of all Indian Service contracts shall be filed with the Second Auditor 
of the Treasury before any payment shall be made thereon, while 
another, passed in August, 1876, requires that certain abstracts shall 
be attached To such contracts when they are filed with the Second 
Comptroller of the Treasury. The latter act, obviously passed in 
contemplation of the former, and carelessly misquoting its provi¬ 
sions, seems to have been passed during the heat and stress of the 
“dog days,” which may account for the discrepancy. 

Section 11 of the act of July 1 , 1882, provides that in certain con¬ 
tingencies certain authority shall devolve upon the Capitol police 
commission. There is a Capitol police, but there is not and never 
has been a Capitol police commission. 

A recent and perhaps more remarkable oversight is found in the 
immigration act of March 3, 1903. Section 2 of this bill, as originally 
introduced, named among the classes to be excluded persons whose 
migration had been induced by promises, etc., of work or labor in 
the United States. This provision was stricken from the bill before 
it was passed, but the second and third provisos, which created 
exceptions to the classes described in the clause stricken out, were 
permitted to remain, with the consequence that the qualifying pro¬ 
visos have nothing left to qualify. 


6 


NECESSITY OF GEEATEK CAEE IN MAKING LAWS. 


In the chapter defining crimes committed within the territorial 
and maritime jurisdiction of the United States there are some astound¬ 
ing discrepancies. Some crimes are made punishable when committed 
upon the high seas, or upon the rivers, etc., within the admiralty 
jurisdiction, or within any fort, etc., under the exclusive jurisdiction 
of the United States; others when committed on the high seas, etc., 
leaving out forts and places of that character on the land; and still 
others when committed upon the high seas or within forts, etc., omit- 
ing other waters within the admiralty jurisdiction. In short, there 
is no uniform designation of the jurisdictional elements, the whole 
chapter being a collection of incongruous provisions without the least 
attempt to provide any comprehensive and harmonious jurisdictional 
test. 

“An ounce of prevention is worth a pound of cure 2 ' in legislation 
as well as in medicine. Revision is a cure, not a preventive. Per¬ 
haps no methods could be adopted that would totally obviate the, 
difficulty, but it is quite certain that the careful observance of the rule 
respecting the reenactment at length of all amended laws, and the 
adoption of some plan by which all changes in and additions to the 
general law could be carefully compared with and considered in the 
light of existing provisions, would go far in that direction. 

Some profit might be derived from the long experience of the English 
Parliament, and provision made whereby the various members of 
the Cabinet, as the responsible heads of the executive departments of 
the Government, might be permitted to appear on the floor of each 
House at stated periods to propose and explain legislation necessary 
and desirable in connection with their respective departments. And 
in addition, the permanent employment of a corps of expert legislative 
draftsmen, who should be good lawyers, thoroughly familiar with the 
Federal statutes and the decisions of the courts respecting them, as 
well as the principles of statutory construction, to prepare or supervise 
the preparation of, or at least carefully review, before final report 
from the committees, all proposed general laws, to the end that they 
may be consistent, harmonious, and complete, would, I think, prove 
of advantage. 

There is one class of congressional enactments which has grown to 
evil proportions, which suggests another much-needed reform. It is 
private or special as distinguished from public or general legislation. 
Thousands of bills are introduced at every session making appropria¬ 
tions to cover the claims of private individuals against the General 
Government, to relieve individuals from the effect of some general 
law, and for many other private purposes. The vast majority of 
these bills present pure questions of fact, sometimes disputed, some¬ 
times not. The committees to whom they are referred, in considering 
them, exercise judicial rather than legislative functions. The atten¬ 
tion of Members is diverted from questions of great moment affecting 
the general public to a consideration of these matters of purely private 
concern. There is crying need for the adoption of some plan by which 
the great majority of these individual grievances could be referred for 
investigation and final adjustment to some independent tribunal, 
where fixed legal rules could be enforced and full and comprehensive 
consideration be given. With rare exceptions, such bills can not 
receive intelligent consideration from the Members of Congress out- 


NECESSITY OF GREATER CARE IN MAKING LAWS. 


7 


side of the one introducing them and the committee, or, more fre¬ 
quently, the subcommittee of the committee to whom they are 
referred. Under the present system much of the time of each indi¬ 
vidual Member is given to the preparation, study, care, and advocacy 
of a number of such measures at each session, with the consequent 
lessening of his opportunity to study and consider the more im¬ 
portant general legislation. It would, of course, be impossible to 
abolish all private legislation, but it would be entirely feasible to 
get rid of the greater portion by devolving upon some tribunal now 
existing, or to be created, the authority finally to pass upon such 
matters under some general law, fixing definite rules respecting the 
class of cases and methods of procedure. 

Washington, D. C. 






